HomeMy WebLinkAbout1 - Original Submission_ 1_Public Works Agreement with Award Construction, IncPUBLIC WORKS AGREEMENT – Page 1 of 10
(Between City of Bremerton and Award Construction, Inc.) Rev. 09/2021
PUBLIC WORKS AGREEMENT
THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and Award Construction, Inc. (“Contractor”), whose mailing address is 980 Willeys Lake Rd, Ferndale WA 98248.
The parties agree as follows:
1.CONTRACTOR SERVICES. The Contractor shall perform the followingservices for the City in the Bid Documents titled: WWTP Headworks and Splitter Box Slide
Gates.
2.TIME OF COMPLETION. Contractor shall complete the work within 65calendar days from the date of issuance of the City’s Notice to Proceed.
3.COMPENSATION. The City shall pay the Contractor the total amount of
$326,455 with Washington State Sales Tax, for the work and services contemplated in this agreement. The Contractor shall invoice the City monthly. The City will pay for the portion of the work described in the invoice that has been completed by the Contractor and approved by the City. The City payment shall not constitute a waiver of the City’s right to final inspection and
acceptance of the project.
A.Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor shallprovide the City a performance bond for the full contract amount to be ineffect until thirty (30) days after the date of final acceptance, or until
receipt of all necessary releases from the State Department of Revenue
and the State Department of Labor and Industries and until settlement ofany liens filed under Chapter 60.28 RCW, whichever is later.
B.Retainage. The City shall hold back a retainage in the amount of five
percent (5%) of any and all payments made to contractor for a period of
thirty (30) days after the date of final acceptance, or until receipt of allnecessary releases from the State Department of Revenue and the StateDepartment of Labor & Industries and until settlement of any liens filedunder Chapter 60.28 RCW, whichever is later.
C.Defective or Unauthorized Work. The City reserves its right to withholdpayment from Contractor for any defective or unauthorized work.Defective or unauthorized work includes, without limitation: work andmaterials that do not conform to the requirements of this agreement; and
extra work and materials furnished without the City’s written approval. If
Contractor is unable, for any reason, to satisfactorily complete any portionof the work, the City may complete the work by contract or otherwise, andContractor shall be liable to the City for any additional costs incurred bythe City. “Additional costs” shall mean all reasonable costs, including
legal costs and attorney fees, incurred by the City beyond the maximum
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Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any Additional
Costs, from any and all amounts due or to become due the Contractor.
D.Final Payment: Waiver of Claims. THE MAKING OF FINALPAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALLPRECLUDE ALL CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS
UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT ISMADE.
4.INDEPENDENT CONTRACTOR. Contractor is and shall be at all times
acting as an independent contractor and not as an employee of the City. The Contractor shall
secure at its expense, and shall be responsible for all payments of income tax, social security, state disability insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in connection with the contract
services, including all required licenses for Contractor's officers, agents, employees and sub-
contractors.
5.TERMINATION. The City may terminate this agreement for good cause.“Good cause” shall include, without limitation, any one or more of the following events:
A.The Contractor’s refusal or failure to supply a sufficient number ofproperly skilled workers or proper materials for completion of theContract work.
B.The Contractor’s failure to complete the work within the time specified in
this agreement.
C.The Contractor’s failure to make full and prompt payment to sub-contractors or for material or labor.
D.The Contractor’s persistent disregard of federal, state or local laws, rulesor regulations.
E.The Contractor’s filing for bankruptcy or becoming adjudged bankrupt.
If the City terminates this agreement for good cause, the Contractor shall not receive any further monies due under this agreement until the Contract work is completed.
6.PREVAILING WAGES. Contractor shall file a “Statement of Intent to Pay
Prevailing Wages” with the State of Washington Department of Labor & Industries prior to
commencing the Contract work. Contractor shall pay prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate
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provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached.
7.CHANGES. The City may issue a written work change directive for any changein the Contract work during the performance of this agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City’s project manager within two (2) business days of the date the Contractor
knew or should have known of the facts and events giving rise to the requested change. If the
City determines that the change increases or decreases the Contractor’s costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The
Contractor shall proceed with the change order work upon receiving a written work change
directive or change order from the City. If the Contractor fails to require a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work; however, the
Contractor may elect to protest the adjustment as provided below:
A.Procedure and Protest by the Contractor. If the Contractor disagrees withanything required by a work change directive or change order, includingany direction, instruction, interpretation, or determination by the City, the
Contractor shall:
1.Immediately give a signed written notice of protest to the City;
2.Supplement the written protest within fourteen (14) calendar days
with a written statement that provides the following information:
a. The date of the Contract’s protest.b.The nature and circumstances that caused the protest.c.The provisions in this agreement that support the protest.
d. The estimated dollar cost, if any, of the protested work and
how that estimate was determined.e.An analysis of the progress schedule showing the schedulechange or disruption if the Contractor is asserting aschedule change or disruption.
The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor’s records needed for evaluating the protest.
3.The City will evaluate all protests, provided the procedures in thissection are followed. If the City determines that a protest is valid,
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the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest.
B.Contractor’s Duty to Complete Protested Work. In spite of any protest,the Contractor shall proceed promptly with the work as the City hasordered.
C.Contractor’s Acceptance of Changes. The Contractor accepts all
requirements of a change order by: (1) endorsing it, (2) writing a separateacceptance, or (3) not protesting in the way this section provides. Achange order that is accepted by Contractor as provided in this sectionshall constitute full payment and final settlement of all claims for contract
time and for direct, indirect and consequential costs, including costs of
delays related to any work, either covered or affected by the change.
D.Failure to Protest Constitutes Waiver. By not protesting as this sectionprovides, the Contractor also waives any additional entitlement and
accepts from the City any written order (including directions, instructions,
interpretations, and determination).
E.Failure to Follow Procedures Constitutes Waiver. By failing to follow theprocedures of this section, the Contractor completely waives any claims
for protested work and accepts form the City any written order (including
directions, instructions, interpretations, and determination).
8.CLAIMS. The Contractor shall give written notice to the City of all claims otherthan change orders within fourteen (14) calendar days of the occurrence of the events giving rise
to the claims. Any claim for damages, additional payment for any reason, or extension of time,
whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the
date Contractor knew, or should have known, of the facts giving rise to the claim. At a
minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a.-e.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS
ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY.
Contractor must, in any event, file any claim or bring any suit arising from or connected
with this agreement within 120 calendar days from the date the contract work is complete.
9.WARRANTY. The Contractor shall correct all defects in workmanship andmaterials within one year from the date of the City’s acceptance of the Contract work. When
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defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to
correct any defects within seven (7) calendar days of its receipt of notice from the City of the
defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction.
10.INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its
officer, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with the performance of this agreement, except for injuries and damages caused by the City’s sole negligence.
The City’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS
INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this agreement.
11.INSURANCE. The Contractor shall procure and maintain for the duration of this
agreement insurance of the types and in the amounts described below against claims for injuries
to persons or damage to property which may arise from or in connection with the performance of the work by the Contractor, its agents, representative, employees, sub-consultants or sub-contractors.
Before beginning work on the project described in this agreement, the Contractor shall
provide a Certificate of Insurance evidencing:
A.Automobile Liability insurance with limits no less than $1,000,000combined single limit per accident for bodily injury and property damage;
and
B.Commercial General Liability insurance written on an occurrence basiswith limits no less than $1,000,000 combined single limit per occurrence
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and $2,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket
contractual; products/completed operations/broad form property damage;
explosion, collapse and underground (XCU); and
C.Excess Liability insurance with limits not less than $1,000,000 peroccurrence and aggregate; and
D. Workers Compensation insurance as statutorily required by the IndustrialInsurance Act of the State of Washington, Title 51, Revised Code ofWashington and employer's liability with limits not less than $1,000,000.
Any payment of deductible or self-insured retention shall be the sole responsibility of
the Contractor.
The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the
Contractor and a copy of the endorsement naming the City as additional insured shall be attached
to the Certificate of Insurance.
The Contractor’s insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to
the limits of the insurer’s liability.
The Consultant's insurance shall be primary and non-contributory insurance as respects the City and shall contain a waiver of subrogation against the City for claims arising out of any operations, liabilities and obligations to which coverage applies. It shall be an affirmative
obligation upon Consultant to advise the City’s Risk Manager by fax at (360) 473-5161, or by
certified mail, return receipt requested to City of Bremerton, attn: Risk Management, 345 6th Street, Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement.
The City reserves the right to receive a certified copy of all the required insurance policies.
12.MISCELLANEOUS.
A.Equal Employment Opportunity Statement. In the hiring of employees forthe performance of work under this Agreement, the Contractor, its subcontractors, or any person
acting on behalf of Contractor shall not discriminate in any employment practice on the basis of
age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability.
B.ADA Statement. The City of Bremerton does not discriminate on the
basis of disability in programs and activities, which it operates pursuant to the requirements of
the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to
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both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment
will be provided.
C. Compliance with Laws. Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement.
D. Work Performed at Contractor’s Risk. Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement. All work shall be done at Contractor’s own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other
articles used or held for use in connection with the work.
E. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of
those terms and rights and they shall remain in full force and effect
F. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be
available only through the jurisdiction, venue and rules of the Kitsap County Superior Court,
Kitsap County, Washington. G. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each
party shall be responsible for payment of its own legal costs and attorney’s fees incurred in
defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City’s right to indemnification under Section 10 of this agreement. H. Written Notice. All communications regarding this agreement shall be
sent to the parties at the addresses listed on the signature page of this agreement, unless
otherwise notified. Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement.
I. Assignment. Any assignment of this agreement by the Contractor without
the written consent of the City shall be void. J. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized
representative of the City and Contractor.
K. Severability. If any one or more sections, sub-sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity
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of the remaining portion of this agreement and the remainder shall remain in full force and effect.
L. Entire Agreement. The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement. This agreement and any attached Exhibits contain the entire agreement
between the parties. Should any language in any Exhibit to this agreement conflict with any
language contained in this agreement, the terms of this agreement shall prevail. M. Liquidated Damages. City and the Contractor recognize that time is of the essence for this Agreement and that the City will suffer financial loss if the work is not
completed by August 15, 2022, plus any extensions mutually agreed upon by the Parties as
allowed under this Agreement. The Parties also recognize the delays, expense and difficulties involved in proving in a legal proceeding the actual loss suffered by the City if the work is not completed on time. Accordingly, instead of requiring any such proof, Contractor shall pay the City liquidated damages in the amount of $500 per day which will begin accumulating the day
after the Substantial Completion date.
IN WITNESS WHEREOF, the parties below have executed this agreement. AWARD CONSTRUCTION, INC. THE CITY OF BREMERTON
Print Name: Print Name: Greg Wheeler Title: Title: Mayor
DATE DATE
Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON:
Angela Hoover 345 6th Street, Suite 100 Bremerton, WA 98337 (360) 473-2348
(360) 473-5200 (facsimile)
APPROVED AS TO FORM:
Kylie J. Finnell Bremerton City Attorney
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President
12/2/2021
B. Todd Vasey
12/2/2021
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ATTEST:
Angela Hoover, City Clerk
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PREVAILING WAGES
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